Can a Witness Statement Trigger a New Investigation? Seeking Advice on HR Protocols

Scenario

An organization conducts disciplinary proceedings against Mr. Don, based on complaints from another employee. As part of the disciplinary proceedings, Mr. White is called as one of the witnesses. During the witness interview, Mr. White provides evidence regarding Mr. Don. In addition, Mr. White also discloses additional information regarding the breach of company policy by another employee of the company (e.g., Mr. Jones). Based on the additional information disclosed by Mr. White about Mr. Jones, the organization intends to initiate disciplinary proceedings/investigation against Mr. Jones.

Query

Can the organization initiate an investigation/disciplinary proceeding against Mr. Jones, based on the statement made by Mr. White in the other disciplinary proceedings (against Mr. Don)? If yes, would Mr. White be obligated to provide evidence against Mr. Jones in the proceedings against Mr. Jones by the organization?

Looking forward to your thoughts.

Thanks and kind regards,
Hasib

When during the course of an enquiry additional information comes up regarding other illegalities, the enquiry officer is duty-bound to report the facts and get fresh orders whether these are to be investigated by him or some other official will enquire into new facts/information.

The statement of Mr. White will be the starting point of the enquiry into new issues which have come up.

The role of the punishing authority in disciplinary proceedings

The Punishing Authority/Disciplining Authority needs to initiate action steps de novo based on the facts and circumstances that arise during ongoing inquiry proceedings, including the following:

1. Informing the delinquent employee about the "facts constituting" allegations/charges of misconduct that have now surfaced and giving him/her an opportunity to know them to prepare and present his/her "defense."

2. Upon receipt of the sought "reply"/"explanation" in writing, the Punishing Authority needs to apply his/her mind to the defense and decide whether to proceed with a full-fledged internal/domestic/departmental/managerial inquiry, in accordance with the universal principles of natural justice.

3. Appointing an inquiry officer or committee to inquire into the allegations, as per the laid-down procedures for such inquiries, and await the inquiry report with definite and conclusive findings.

4. Applying his/her mind to the facts of the case as ascertained by the inquiry officer or inquiry committee and deciding on awarding proportionate punishment or condonation, as the case may be.

The role of the presenting officer/management representative

The Presenting Officer/Management Representative may present/examine the evidence or facts that surfaced in the previous inquiry, giving all reasonable opportunities to the defendant to cross-examine them.

That should, in a nutshell, suffice. Justice should be done and also seen to have been done (being fair, just, and proper).

Regards, Kritarth Team of Internal Inquiry Professionals
22nd July 2018

Handling Complaints and Disciplinary Proceedings

The management must take the written complaint from Mr. White on a separate sheet as a statement made in the case of Mr. Don against Mr. Jones.

Upon receiving the written complaint, the management has to critically examine it to determine whether the complaint contains substantial facts to act upon. Once the management is satisfied, they should then request a written explanation from Mr. Jones as to why the management should not take action against him for his alleged misconduct.

After receiving a reply from Mr. Jones, the management must make a decision on whether to initiate proceedings or not.

Before proceeding against Mr. Jones formally, you need to conduct a fact-finding investigation into the statement made by Mr. White in another inquiry. He has deposed in the inquiry but has not complained against Mr. White.

After your preliminary investigation, if you believe that the alleged act of misconduct has merit and Mr. Jones is willing to participate in the domestic inquiry as a witness and testify in favor of the charges, then you can proceed against the delinquent after considering all legalities, context, and implications on employee relations.

Regards,
Vinayak Nagarkar
HR Consultant

Thank you very much for your valuable and expert inputs. The message is clear in general.

Follow-up Question

What if the statements made by Mr. White (the witness) against Mr. Jones (the alleged delinquent employee) are of a general nature for which Mr. Jones does not intend to submit any written complaint (e.g., Mr. Jones regularly smokes in company premises in no smoking zones or misuses company assets, etc.)? In such cases, can the employer initiate disciplinary measures against Mr. Jones based solely on the witness statement of Mr. White, without any additional specific written complaint against Mr. Jones by Mr. White?

Thanks and kind regards,
Hasib